Article I, section 11, of the Oregon Constitution provides, in part, that

"in the circuit court ten members of the jury may render a verdict of guilty
or not guilty, save and except a verdict of guilty of first degree murder,
which shall be found only by unanimous verdict, and not otherwise[.]"

Notwithstanding that provision, defendant requested that the jury be instructed as follows:
"This being a criminal case, each and every juror must agree on your verdict." Defendant
argued, generally, that that instruction comported with--and, indeed, was compelled by--the following observation in Blakely v. Washington, 542 US 296, 301, 124 S Ct 2531, 159
L Ed 2d 403 (2004):

"This rule reflects two longstanding tenets of common-law criminal
jurisprudence: that the 'truth of every accusation' against a defendant
'should afterwards be confirmed by the unanimous suffrage of twelve of his
equals and neighbours,' 4 W. Blackstone, Commentaries on the Laws of
England 343 (1769) * * *."

The trial court rejected the proposed instruction:

"Yes, I can't give that. That wouldn't comply with Oregon law so I'm not
going to do that.

"* * * * *

"THE COURT: I don't think Blakely actually speaks to this--Blakely
wasn't really a decision that was addressing that special issue. It was
addressing, of course, whether or not a jury should weigh in on factors that
related to enhancements of sentencing. * * *

"* * * * *

"THE COURT: * * * [That statement] is in a sense a form of dicta.
In other words, the issue of whether 12 are required in every case was not
squarely before the court. And this was a sentence with which I'm familiar
because, of course, I'm familiar with Blakely * * * but [it's] in the context
[of] an entirely different issue.

"I don't read this as a decision by the United States Supreme Court
that every state must have * * * unanimous verdicts."

Nothing in Blakely purports to overrule Apodaca; indeed, Blakely does not
include any reference to Apodaca. Rather, as the trial court correctly observed, jury
unanimity--or the lack thereof--was immaterial to the analysis in Blakely, and its
antecedent, Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435
(2000), which both addressed the constitutionally prescribed role of the jury, as opposed
to the court, in determining facts material to the imposition of criminal sentences. Cf.
State v. Caples, 938 So 2d 147, 157 (La App 1 Cir 2006) (rejecting similar challenge to
Louisiana's constitutional and statutory provisions permitting less-than-unanimous
criminal verdicts). The trial court properly refused to give the proposed instruction.

Affirmed.

1. Very recently, in
State v. Miller, 214 Or App 494, ___ P3d ___ (2007), we
rejected an unpreserved challenge identical to defendant's, concluding that, given Apodaca, the
failure to give a "unanimous verdict" instruction was, at the very least, not error apparent on the
face of the record.